Interspousal Wiretapping and Eavesdropping: an Update-part I

• Publication year: 1995
• Pages: 2343

24 Colo.Law. 2343 Colorado Lawyer 1995.

1995, October, Pg. 2343. Interspousal Wiretapping and Eavesdropping: An Update-Part I

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2343

Vol. 24, No. 10, Pg. 2343

Interspousal Wiretapping and Eavesdropping: An Update---Part I

by Ann B. Frick and Marjorie J. Long

Contested custody actions are, by their very nature, a process that requires each spouse to expose the worst in the other spouse. The temptation on the part of one spouse to tape telephone conversations of an opposing spouse may be irresistible. The prevalence of such activity is probably greater than most domestic relations practitioners realize. Interspousal electronic eavesdropping or taping of conversations is, however, an area fraught with peril

This Part I of a two-part article analyzes the case law history of wiretapping, emphasizing cases affecting Colorado practitioners. Part II, to be published in the November issue, will apply these cases to help practitioners better understand the consequences of specific actions on the part of their clients and those experts with whom they are working.

Chronology of Wiretapping Cases

In 1968, Congress, under its Commerce power, passed the Omnibus Crime Control and Safe Streets Act to establish an across-the-board prohibition on all unauthorized electronic surveillance,(fn1) hereinafter referred to as "Title III." Title III provides that any person who intentionally intercepts any wire, oral or electronic communication or intentionally discloses or uses such information, knowing that it was obtained through the interception of wire, oral or electronic communication, violates 18 U.S.C. § 2511 and "shall be fined not more than $10,000 or imprisoned not more than five years, or both."(fn2)

An aggrieved party may bring a civil suit to recover damages from the party who conducted the illegal interception and disclosed or used the contents, or from a nonparty who may have used or disclosed the intercepted communication, knowing it was illegally obtained. The statute of limitations for bringing suit in federal court is two years from the date the aggrieved party has a reasonable opportunity to discover the violation.(fn3)

Application of Title III was initially limited to criminal cases and prohibited the use of warrantless electronic tapings at trials of drug dealers, organized crime participants and similar offenders. Several years after the passage of Title III, the issue of...